IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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1 IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL PABLO-MELETZ V. HASTINGS FOODS NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P (E). MANUEL PABLO-MELETZ, APPELLEE, V. HASTINGS FOODS, LLC, AND TRAVELERS CASUALTY & SURETY CO., APPELLANTS. Filed March 12, No. A Appeal from the Workers Compensation Court: JOHN R. HOFFERT, Judge. Affirmed. Sonya K. Koperski, of Leininger, Smith, Johnson, Baack, Placzek & Allen, for appellants. Thomas A. Wagoner for appellee. IRWIN, MOORE, and PIRTLE, Judges. MOORE, Judge. INTRODUCTION Hastings Foods, LLC, and Travelers Casualty & Surety Co. (collectively the Appellants) appeal from the award of benefits to Manuel Pablo-Meletz by the Nebraska Workers Compensation Court, challenging the award of future medical benefits and vocational rehabilitation benefits. Because there was sufficient competent evidence in the record to support these awards, we affirm. BACKGROUND Pablo-Meletz filed a preprinted, fill-in-form petition in the compensation court, alleging that he suffered an accident and injury on February 28, 2006, arising out of and in the course of his employment by Hastings Foods. Specifically, Pablo-Meletz alleged that he sustained a laceration, nerve damage, and scarring to his right hand and pain in his right forearm, right elbow, right shoulder, neck, and upper back. He requested an award of such benefits as he... may be entitled to under the provisions of the Nebraska Workers Compensation Law. Trial was - 1 -

2 held before the compensation court on February 29, Prior to the presentation of evidence, the parties stipulated to various facts, including that Pablo-Meletz was employed by Hastings Foods on February 28, 2006, and that he sustained an accident arising out of and in the course and scope of his employment on that date with a resulting injury to his right hand. All other injuries were contested at trial. The evidence shows that on February 28, 2006, Pablo-Meletz was placing meat into a skinning machine when the glove he was wearing on his right hand was caught, pulling his right hand, fingers, and thumb into the machine. He was able to withdraw his hand but suffered significant laceration on the palmar aspect of the thumb, index, middle, and ring fingers and to the distal area of the palm. He was treated at the hospital and underwent a repair to the complex laceration on his hand. Followup treatment was provided by Dr. Barry Bohlen. Bohlen released Pablo-Meletz to return to work on March 3 to work left-handed duty only. On July 25, Bohlen placed Pablo-Meletz at maximum medical improvement (MMI). Bohlen relied on a functional capacity evaluation (FCE) completed by Pablo-Meletz in June 2006 and gave him permanent restrictions of no heavy lifting greater than 15 to 25 pounds on a regular basis. The FCE restrictions placed Pablo-Meletz in the medium-work-capacity category. Bohlen provided a referral to Dr. David Clough, an orthopedic surgeon, who saw Pablo-Meletz on September 21, At that time, Pablo-Meletz reported a lack of sensation in his thumb, middle, and index fingers and pain radiating from his hand through his shoulder and into his neck. He also experienced cold intolerance that was improved by using gloves. Upon examining Pablo-Meletz right hand, Clough found significant scar tissue contracture, restricting extension of his index and middle fingers and restricting the thumb, index, and middle webspace width. Clough determined that Pablo-Meletz proximal radiating pain was probably due to nerve lacerations and recommended surgery to improve the contracture of the skin and the nerve lacerations. Clough performed webspace deepening surgery on November 15. Pablo-Meletz underwent another FCE on July 2, The FCE was conditionally valid, which generally indicates that a client has not worked at his or her full capacity. The therapist recommended additional lifting restrictions. At the time of this FCE, Pablo-Meletz was working in a light-duty position, which included light janitorial work, cleaning, and lifting pieces of trash weighing 5 pounds or less, duties which the therapist thought were within Pablo-Meletz restrictions. However, the therapist was concerned that if Pablo-Meletz had a total lack of protective sensation in the first three digits of his right hand, as suggested in a nerve conduction study, he might be at risk for further injury. Clough referred Pablo-Meletz to Dr. Consuelo Lorenzo, a rehabilitation specialist, for a consultation regarding Pablo-Meletz arm pain. Lorenzo first saw Pablo-Meletz on September 12, Pablo-Meletz informed Lorenzo that he continued to have pain from his wrist to his shoulder, in addition to numbness in his hand, and that the pain medication he was then using, Tramadol, was helpful for only a very short time. Lorenzo gave Pablo-Meletz samples of Lyrica to try, although she did not feel any medication would completely relieve his pain. She also recommended additional physical therapy focused on myofascial-type treatment for his shoulder. Pablo-Meletz saw Lorenzo again on October 10, 2007, after completing the prescribed physical therapy program. Pablo-Meletz reported that he obtained some relief from the therapy but that the symptoms returned when he went to work. Pablo-Meletz did not call after - 2 -

3 completing the Lyrica samples, so he had been off the medication for a couple of weeks. He reported that the Lyrica was better than nothing. Lorenzo provided more samples of Lyrica and a prescription for when the samples ran out. At another visit on November 28, Lorenzo again tried to establish whether the Lyrica was helpful. Pablo-Meletz reported that sometimes it was and sometimes it was not. Lorenzo told Pablo-Meletz he could continue to take Lyrica and could use Tramadol as needed, and she encouraged him to continue his exercise and stretching program. She did not have any further suggestions at that time for treatment of his shoulder pain and opined that there was no specific impairment related to Pablo-Meletz proximal shoulder muscular-type pain. She deferred to Clough with respect to an impairment rating for Pablo-Meletz right hand. On December 20, 2007, Clough issued a final medical report on Pablo-Meletz. He assigned Pablo-Meletz a permanent partial disability rating of 42 percent to Pablo-Meletz right hand, but advised that should his contractures progress that impairment may increase. Clough also opined that there was a significant risk of recurrent contracture over the next 5 years, which might require additional surgical procedures, including releases and skin grafts. Clough opined that Pablo-Meletz required continuing use of Lyrica on an indefinite basis. Clough stated that Pablo-Meletz required physician followup for his medication, probably every 3 to 6 months by a family physician. Clough noted that owing to Pablo-Meletz significant sensory deficit in his hand, a very dramatic restriction existed relative to his ability to do heavy lifting on more than an occasional basis in a less controlled or more hazardous environment. Clough advised that Pablo-Meletz maximum lifting capacity as shown in the July 2007 FCE could only be attained in a very controlled and warm environment lacking sharp instruments and tools or moving machinery, which could injure the worker. On January 24, 2008, Pablo-Meletz saw Lorenzo for reevaluation. Pablo-Meletz reported complaints of increased pain. He reported that he was taking Lyrica twice a day but was unable to tell Lorenzo the dosage. Pablo-Meletz did not obtain a refill of Tramadol after finishing his last prescription of that medication. Lorenzo found it was hard to establish how helpful the medications were to Pablo-Meletz, although he reported that the medications were a little bit helpful. Lorenzo inquired at Pablo-Meletz pharmacy as to the medications he was using but was unable to confirm that any of the prescriptions for Lyrica had been filled. Pablo-Meletz returned to Lorenzo on April 24, 2008, for another followup with respect to his medication. Pablo-Meletz reported the daily amount of Lyrica that he was taking, although he had been taking it only on the days that he worked, and reported that it helped a little. Lorenzo instructed Pablo-Meletz to take Lyrica every day as prescribed and Tramadol as needed. If he remained on these medications, he would need to see a physician at least every 6 months to check for any side effects. Lorenzo again opined that there had been no specific injury to Pablo-Meletz shoulder or neck and opined that the previous impairment rating provided by Clough for Pablo-Meletz hand was adequate and appropriate for the injury. Pablo-Meletz last visit to Lorenzo was on December 18, Lorenzo again noted poor consistency by Pablo-Meletz in taking his medications. Lorenzo reported that she did not have any further treatments to offer Pablo-Meletz that she had not already tried and recommended that he continue to use Tramadol as needed, that he could use over-the-counter anti-inflammatories or Tylenol, and that he should continue his exercise program. Although a followup visit was not - 3 -

4 scheduled, Lorenzo again indicated the need for Pablo-Meletz to follow up with a physician if he continued taking prescription medication. Pablo-Meletz, who appeared pro se at trial, testified in response to questioning by the compensation court with the assistance of an interpreter. He described the nature of his duties as a meat slicer, his accident and injury, and his course of treatment following the initial surgical repair of his injury. After returning to work in a janitorial position, Pablo-Meletz worked for Hastings Foods for approximately 4 years until he was fired. The grounds for his firing are not clear from the record, but Pablo-Meletz testified that he took time off to rest his hand for about 3 weeks, which was necessary because he worked essentially one-handed and his tasks took longer to complete. He was fired when he returned to work, and no explanation was offered by Hastings Foods. Pablo-Meletz had not worked anywhere else since that time. Pablo-Meletz testified that he had looked for work, but no one wanted to hire him because he was unable to use a knife and had no right-hand strength. At the time of trial, Pablo-Meletz was unable to grab things, was bothered by the cold, and continued to experience pain which sometimes prevented him from falling asleep. He continued to take over-the-counter medications, which were not helpful. He had no future appointments scheduled with any medical care providers. The compensation court entered an award of benefits on May 11, The court found that Pablo-Meletz suffered an injury to his right hand but that he failed to prove his other alleged injuries. The court set forth an award of certain temporary total disability benefits. With respect to permanent disability, the court found that the unrefuted medical evidence established that Pablo-Meletz suffered a significant injury to his right hand resulting in a 42-percent medical impairment rating. Accordingly, the court entered an award of permanent partial disability benefits. After considering Pablo-Meletz entitlement to certain medical benefits not relevant to this appeal, the compensation court considered his entitlement to future medical benefits. The court noted Pablo-Meletz trial testimony that he had no future appointment with any medical care providers, that it had been several years since he was seen by Bohlen and Lorenzo, and that he continued to take over-the-counter medications, which were not helpful. The court referenced Clough s December 2007 report, wherein Clough noted the significant risk of recurrent contracture which might require additional surgical procedures and noted that Pablo-Meletz required continuing use of Lyrica on an indefinite basis. The court found it unclear why Pablo-Meletz was not currently taking that medication. The court stated that Clough s recommendation served to trigger the award of future medical benefits. Accordingly, the court entered an award of future medical benefits on Pablo-Meletz behalf. Finally, the compensation court addressed the issue of vocational rehabilitation benefits. The court stated that although not requested in either the petition or pretrial statement, it felt compelled to address the issue, observing that there was little doubt that Pablo-Meletz was significantly restricted [due to] his dominant right hand injury. The court found that the restrictions set forth in Clough s report of December 2007 are quite limiting for an individual of [Pablo-Meletz ] vocational and educational makeup. The court noted that Hastings Foods provided light-duty work for Pablo-Meletz within his stated restrictions until his employment was terminated several years after his injury, but it found that the grounds for Pablo-Meletz termination were not clearly established. The court noted Pablo-Meletz testimony that he took - 4 -

5 time off to rest his hand and that he was fired without explanation upon his return. The court found, given Pablo-Meletz testimony, the nature of his injury, and his vocational-educational makeup, that Pablo-Meletz was entitled to vocational rehabilitation benefits. ASSIGNMENTS OF ERROR The Appellants assert that the compensation court erred in awarding Pablo-Meletz (1) future medical benefits and (2) vocational rehabilitation benefits. STANDARD OF REVIEW A judgment, order, or award of the Workers Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012). ANALYSIS Future Medical Benefits. The Appellants assert that the compensation court erred in awarding future medical benefits to Pablo-Meletz. Before an order for future medical benefits may be entered, there should be a stipulation of the parties or evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease. Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012). In challenging the compensation court s award of future medical benefits, the Appellants focus on the fact that at the time of trial, Pablo-Meletz had not taken Lyrica for approximately 4 years, and the fact that there was no evidence of followup appointments with his doctors as required for a Lyrica prescription. They assert that the trial judge based his award of future medical benefits solely on Clough s opinion about the need for Lyrica. However, the fact that Pablo-Meletz was not currently taking Lyrica does not rule out the possibility of doing so in the future, as the need for such medication for relief from the pain associated with his work-related injury has been established by various doctors. Further, a careful reading of the award shows that in awarding future medical benefits, the trial judge also discussed Clough s opinion that Pablo-Meletz may require further surgical procedures due to the significant risk of recurrent contracture. Pablo-Meletz even inquired about such a surgery at the time of trial. Because the court s award of future medical benefits is supported by the record, the Appellants assignment of error is without merit. Vocational Rehabilitation Benefits. The Appellants assert that the compensation court erred in awarding vocational rehabilitation benefits to Pablo-Meletz. An injured employee is entitled to vocational rehabilitation services as may be reasonably necessary to restore him or her to suitable employment when the employee is unable to perform suitable work for which he or she has previous training or experience as a result of the injury. Becerra v. United Parcel Service, supra

6 See Neb. Rev. Stat (3) (Reissue 2010). Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the compensation court. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008). The purpose of vocational rehabilitation under workers compensation is to restore an injured employee to suitable gainful employment. Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005). See, also, (3). At the outset, we note that Pablo-Meletz petition sought an award of such benefits as he... may be entitled to under the provisions of the workers compensation laws, which is sufficient to include a request for vocational rehabilitation benefits. The Appellants argue that Pablo-Meletz is not entitled to vocational rehabilitation because he was working full time for Hastings Foods in a janitorial position at the time he was placed at MMI. They rely on a proposition from Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 214, 778 N.W.2d 504, 514 (2009), which states that a determination regarding an employee s entitlement to vocational rehabilitation is made at the time of [MMI]. However, in that case, the claimant had not yet reached MMI, and as such, we determined that the finding that he was not entitled to vocational rehabilitation services was premature. We went on to cite Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002), recognizing that entitlement to vocational rehabilitation cannot be determined until after a claimant has reached MMI, which does not occur until the claimant s permanent impairments or restrictions have been determined. Visoso does not stand for the proposition that entitlement to vocational rehabilitation services must be determined at the exact point in time that the worker has reached MMI, only that it cannot be determined prior to reaching MMI. Further, nothing in (3) precludes a determination of entitlement to vocational rehabilitation after a claimant reaches MMI. Although Pablo-Meletz was working full time at the point he reached MMI, he argues that he was not returned to suitable work for which he had previous training and experience. Rather, Pablo-Meletz was placed in a light-duty janitorial job, a different position than he held prior to his accident. Even in this light-duty job, he continued to experience pain, had problems with the cold work environment, and had to work slowly with one hand. These problems caused Pablo-Meletz to miss work for approximately 3 weeks, after which time he was fired. He has been unable to find suitable work since being fired by Hastings Foods. There is no real dispute that Pablo-Meletz is unable to return to the type of work in the food industry that he was engaging in prior to his injury. He is significantly restricted from working with his dominant right hand. We note that Pablo-Meletz, whose first language is Spanish, testified at trial through an interpreter and required the use of an interpreter at his doctor visits. We conclude that there was sufficient evidence to support the trial court s finding that given the nature of his injury, along with his vocational-educational makeup, Pablo-Meletz was entitled to vocational rehabilitation benefits. We find no clear error in the award of vocational rehabilitation benefits to restore Pablo-Meletz to suitable gainful employment, particularly in light of the beneficent purpose of the Nebraska Workers Compensation Act. See Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012) (generally, Nebraska Workers Compensation Act should be construed to accomplish its beneficent purposes, including restoration of injured employee to gainful employment). This assignment of error is without merit

7 CONCLUSION The awards of future medical benefits and vocational rehabilitation benefits are supported by sufficient competent evidence in the record. Accordingly, we affirm the award of such benefits to Pablo-Meletz. AFFIRMED